FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2006-28
Date of Issue: November 28, 2006

ISSUES

ISSUE I

Whether a newly elected judge may continue to serve as a volunteer on the mounted unit of the sheriff’s department of one of the counties in the judge’s circuit.

ANSWER: No.

ISSUE II

Whether a newly elected judge may continue to serve as a volunteer member and officer of the board of directors of a not-for-profit rural health clinic funded primarily by federal grants, when the board does not participate in fundraising and there is a separate board that is focused on fundraising.

ANSWER: Yes, unless frequent disqualification would be necessary.

ISSUE III

Whether a newly elected judge may join the foundation board for a hospice facility in the judge’s circuit if the judge is not directly involved in fund-raising, even though the judge’s name will be used on the letterhead of the organization.

ANSWER: Yes.

ISSUE IV

Whether a newly elected judge may continue to serve as a volunteer on a county domestic violence task team within the judge’s jurisdiction which is chaired by the executive director of the local domestic violence shelter.

ANSWER: No.

ISSUE V

Whether a newly elected judge may continue to serve as a volunteer on a county sheriff’s sexual assault response team, when it is possible that the judge will be assigned felony cases on an as-needed basis in the event of conflicts of other judges within the circuit.

ANSWER: No.

COMMON FACTS

The inquiring judge is a newly elected circuit court judge within a circuit with few judicial seats.  The judge has served as a volunteer for several different organizations, and has been asked to provide services for  additional organizations.

It is important to some of the issues addressed in this opinion that although the inquiring judge’s initial assignment does not include felonies, there is only one other circuit judge assigned to sit in the same county, and the judge may be assigned to felony cases on an as-needed basis in the event of conflicts.

ISSUE I: FACTS

The judge has been serving for many years as a volunteer on the mounted unit of the sheriff’s department of a county within the judge’s jurisdiction.  The mission of the unit is to aid the sheriff’s department in searching for individuals who are suspected of being lost in areas of the county that are accessible on horseback but not accessible by foot or motor vehicle.  Members of the mounted unit are trained to search for evidence and can be called out for that purpose as well.  Members often ride in parades with the sheriff as part of his organization.

ISSUE I: DISCUSSION

Canon 5 of the Florida Code of Judicial Conduct contains the primary rules relating to extra-judicial activities.   Any discussion of contemplated extra-judicial activities should begin with the requirement in Canon 5A that a judge must conduct all such  activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, or interfere with the proper performance of judicial duties. See also the parallel requirements relating to quasi-judicial activities contained within Canon 4A. 

In Fla. JEAC Op.  00-04 we concluded that a civil traffic infraction hearing officer’s attendance at the local police department’s citizens police academy violates the code of judicial conduct by raising an appearance of impropriety.  See Fla. Code Jud. Conduct, Canon 2A.    Specifically, the committee’s opinion turned on the fact that rather than infrequent and limited contact with law enforcement, the inquiry involved “prolonged, familiar contact” with the local police department that may create a reasonable perception that casts doubt on the hearing officer’s impartiality, interfere with the judge’s duties, and detract from the dignity of judicial office.

Here, given the fact that the inquiring judge may be assigned to criminal matters in the event another judge has a conflict, and the activities of the mounted unit would involve prolonged, familiar contact with the local sheriff’s office and its members, the committee believes that the  activity would create an appearance of partiality, and therefore impropriety, not permitted by Canon 5 or Canon 2.  So, too, would participating in parades as part of the sheriff’s organization.  Moreover, because the law enforcement activity of collecting evidence does not appear to be separable from the activity of searching for lost persons, it does not appear that it would be practicable for the inquiring judge to limit activities to non law enforcement related activity.  See also discussion under Issue V.

ISSUE II: FACTS

The inquiring judge has served as a member of the board of directors, and is currently vice-chair of the board, of a not-for-profit, rural health clinic funded primarily by federal grants.  The board is an operational board that does not participate in day-to-day management or fundraising.  A separate foundation board focuses on fundraising and the inquiring judge has nothing to do with that board.

ISSUE II: DISCUSSION

Judges are encouraged to engage in extra-judicial community activities.  The Commentary to Canon 5A reminds us that a judge’s isolation from the community is neither possible nor wise.

Florida Code of Judicial  Conduct, Canon 5C(3) states that a judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit, subject to certain limitations.   

For example, Canon 5C(3)(b)(i) & (iii) prohibits the judge’s personal participation in fund-raising.  While the judge may belong to civic organizations that engage in fund-raising, the judge may not solicit funds or be featured in any program or presentation that has a fund-raising component.  Because the board does not participate in fund-raising, the Canons relating to fund-raising would permit the judge’s continued participation on this organization’s board of directors. 

The committee is concerned however as to whether this health clinic is frequently involved in litigation.  In Fla. JEAC Op. 03-07 the committee opined that a judge should not serve on a hospital’s ethics committee because as a member of the hospital ethics committee the judge would participate in issuing opinions which promulgate policy and resolve medical/legal issues.  The committee wrote that there was therefore a potential for litigation involving the committee which could also involve the inquiring judge as a witness or even as a defendant.  Accordingly the committee opined that such service could violate Canons 2A, 5A, and 5C(3)(a).

In several prior opinions the committee addressed the propriety of a judge sitting on the board of a hospital, Fla. JEAC Ops. 94-02, 91-32, 91-25, and 83-9, and in each concluded that the activity was either prohibited by the canons or should be strongly discouraged, primarily because of the potential for litigation that would come before the judge.  See Fla. Code Jud. Conduct, Canons 2A, 5A and 5C(3)(a).  Accordingly,  a majority of the members of this committee cautions the inquiring judge regarding the potential for frequent disqualification. 

One member of the committee is of the view that a judge should not sit on a hospital or clinic board because of the potential for frequent disqualification.

ISSUE III: FACTS

The inquiring judge has been invited to sit on the foundation board for a (presumably non-profit) hospice located in communities in the judge’s circuit.  The judge has been told that the judge need not participate in any fund-raising activities.  The board meets quarterly and serves only in an advisory capacity.

ISSUE III: DISCUSSION

Canon 5C(3)(b) expressly permits a judge, as an officer, director, trustee or non-legal advisor, or as a member or otherwise, to assist a charitable organization in planning fund-raising, so long as the judge does not personally participate in the solicitation of funds or other fund-raising activities.  The judge shall also not use or permit the use of the prestige of judicial office for fund-raising. 

The commentary to Canon 5C(3)(b) states that “[u]se of an organization letterhead for fund-raising or membership solicitation does not violate Section 5C(3)(b) provided the letterhead lists only the judge’s name and office or other position in the organization, and, if comparable designation are listed for other persons, the judge’s judicial designation.”  Accordingly, if comparable designations are listed for other members of the board, listing the judge’s name as a judge does not  violate the canons. 

If it reasonably appears, however,  that the judge’s selection for the foundation board was only to gain the prestige of judicial office for fund-raising or membership solicitation as prohibited by Canon 5C(3)(b)(iii), then the judge should decline the invitation to sit on the foundation board.

ISSUE IV: FACTS

The inquiring judge serves on a county domestic violence task team within the judge’s jurisdiction.  The task team is chaired by the executive director of the local domestic violence shelter.  The domestic violence task team meets monthly and addresses the needs of the shelter and victims of domestic violence who seek counseling in the county in which the judge sits.  The judge’s assignment as a judge will include ruling on domestic violence injunctions.

ISSUE IV: DISCUSSION

A judge may serve on a domestic violence task force, and even chair a domestic violence task force, as long as the activities are law related and gender-neutral.  See Fla. JEAC Op. 94-33.  In Opinion 95-14, the inquiring judge was an administrative judge in the judge’s county’s domestic violence division.  The committee stated that the judge could ethically serve as one of the three judges on an implementation committee for the Governor’s Task Force on Domestic Violence.  Moreover, in Yates v. State, 704 So. 2d 1159 (Fla. 5th DCA 1998), the criminal division judge was the chair of the domestic violence task force and participated in a dedication ceremony at which a victim presented a wreath.  Thereafter, the judge presided over a trial in which the defendant was charged with aggravated violence (domestic violence).  704 So. 2d at 1159.  One of the issues on appeal was disqualification of the trial judge.  Id.  Judge Harris, in his concurring opinion, stated that the judge had “no affirmative duty to automatically step down from a case because of membership on a [domestic violence] task force unless the agenda of the task force is inconsistent with the judge’s duty to judge impartially.”  Id. at 1160.

Consequently, a judge being a member of a domestic violence task force, or even being the chair of a domestic violence task force is permissible as long as the group is law related and gender-neutral.  However, judges cannot serve on a domestic violence task force if it is an advocacy group.  Fla. JEAC Op. 01-14.  Furthermore, a judge cannot belong to a domestic violence task force if the chair of the task force is the executive director of a women’s shelter, since such involvement would detract from the judge’s role as an impartial magistrate.  See Fla. JEAC Op. 91-22 (Because judge’s involvement would detract from the judge’s role as an impartial magistrate, a judge may not belong to Women in Distress, a non-profit, quasi-governmental organization,  which provides shelter, food, clothing,  court-ordered group and individual counseling to defendants convicted of spouse abuse.)

ISSUE V: FACTS

The sheriff’s office in the county where the judge will sit has begun a sexual assault response team.  Before being elected the inquiring judge participated in meetings of the advisory group by writing the protocols for sexual assault exams and interviews.  The inquiring judge asks whether it is permissible to continue to participate in such meetings.

ISSUE V: DISCUSSION

Participation in a sexual assault response team associated with the local sheriff’s office, particularly when the inquiring judge may be assigned to the criminal bench when another judge in the circuit has a conflict,   could cast reasonable doubt on the judge’s impartiality as set forth above and is prohibited by Canon 5.  Judges should not accept positions that would interfere with the independence of the judiciary.  See also Fla. Code Jud. Conduct, Canon 5C(2).

TIMING OF RESIGNATION

The inquiring judge has asked when the judge should resign from any of the above organizations.  The committee believes that the judge should resign, as indicated, before taking office as a judge.

 

REFERENCES

Florida Cases: Yates v. State, 704 So. 2d 1159 (Fla. 5th DCA 1998).

Florida Code of Judicial Conduct: Canons 2, 2A, 4A, 5, 5A, 5A(1),  5C(2), 5C(3), 5C(3)(a) & (b), 5C(3)(b)(i) &(iii) and Commentary to Canon 5A.

Florida Judicial Ethics Advisory Committee Opinions:  03-07, 01-14, 00-04, 98-26, 98-10, 95-14, 94-33, 94-02, 91-32, 91-25, 91-22, 83-9.

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The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

 

For further information, contact Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301  S. MLK Jr. Blvd. Tallahassee, FL 32399.

Participating Members:
Judge Robert T. Benton, II, Judge Michael Raiden, Judge Lisa Davidson, Judge McFerrin Smith, Judge Leslie B. Rothenberg, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro, Judge Jose Rodriguez, Judge T. Michael Jones, Marjorie Gadarian Graham, Esquire & Patricia E. Lowry, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)